The opinion
Dissenting Opinion by
Mr. Justice Dbew :
After a very careful study of the record in this case I have concluded that defendant did not have a fair trial and that her motion for a new tidal should be granted.
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Mrs. Holt was found guilty because arsenic in a substantial amount was found in the body of her husband, and because she had purchased two small quantities of that drug, one ounce each, on February 15, and May 13, 1943, at Headlee’s Drug Store in Waynesburg, where the druggist said she was “a frequent customer”. Holt died May 27, 1943. At the time of these purchases she gave her correct name, and her address as 177 East High Street, Waynesburg. At the time of the first purchase she was actually living at 177 East Main Street, Waynesburg, at the home of Jennie Hessel, where she had been since her arrival in Waynesburg from Oklahoma on February 1st, 1943. She moved from there on or about March 2,1943, and was living at 340 East Lincoln Street, Waynesburg, at the home of Mrs. Sellers, when she made the second purchase, where she remained until after the death of her husband. On May 26,1943, at Krause’s Pharmacy in close-by Washington, Pennsylvania, she purchased a small quantity, 1 dram, 60 grains, of strychnine. The druggist said she had asked for arsenic and that he told her he had none. She again gave her correct name and her address as 177 High Street, Waynesburg. This druggist said she told him she was from Oklahoma, that her husband was working on the pipe line which was being built through Waynesburg, and she then exhibited her ration book to establish her identity. All of this appears in the Commonwealth’s case, and there is not anything in the entire record, other than the erroneous street address, which could in any way suggest even a suspicion that this woman was attempting to hide her identity. I think any fair examination of this testimony would force the conclusion that the error in the address could not have been intentional or of any possible advantage to evade identification, and that she did just about everything that any innocent person would do to make her identity known. This is particularly true since she was a stranger in the town, having lived there only about two weeks when she made the first purchase.
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Waynesburg is a small borough with a population of less than 5000 people. The Commonwealth made much of this inadvertence. It is one of a number of small and trifling incidents which were permitted to enter the case. There is not anything to show that she ever administered arsenic or anything else to her husband. Her explanation of the reason for purchasing the arsenic was for her own hygienic use and was quite sufficient, if believed. Since only arsenic was found by the autopsy, all question of poison by strychnine or other drugs was removed by the trial judge from the case.
Almost all, if not actually all, of the facts and circumstances which led to the conviction of this woman can be more readily reconciled with her innocence than with her guilt. Her husband was a sick man; although but thirty-three years of age, he had been ill, and under the treatment of physicians for at least two years prior to his death. He seemed to have a serious gall bladder condition and it worried him considerably, he being afraid of an operation. On May 20, the Thursday before he died, he went to Doctor Walker, a witness for the Commonwealth, and arranged for an x-ray examination of his gall bladder, he having been sent there by Doctor Hart, who had seen him several 'times regarding his illness. He failed to keep his appointment with Doctor Walker because he could not retain the paregoric which he had been instructed by the doctor to take before returning on May 22.
Holt went to work at about six o’clock of the morning of the day he died. He returned home about eleven o’clock and said he had suffered a chill. It appears that he undressed, went into the bathroom, returned to his bedroom and went to bed. Mrs. Holt called Doctor Walker by telephone; she returned to the room and in a few minutes was heard to scream, calling the people on the first floor, Mr. and Mrs. Michael. They went up at once accompanied by their daughter, a girl of about eighteen years of age. Mrs. Sellers, the landlady, who
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had a room on the same floor, also came into the apartment. They, appearing as witnesses for the Commonwealth, testified that when they arrived in the room Holt was unconscious and in a convulsion; that in two or three minutes he regained consciousness and recognized those present and called each by name, and then said: “that capsule made me so sick that I took about a half hour ago”, and also “I felt pretty good about a half an hour ago”. They heard him say that he was in great pain and ask them to do something for him. He immediately went into another convulsion and died in a short time.
This testimony is particularly important, because of the disinterest of the witnesses. They heard this man’s statements immediately before his death and in the presence of his wife, and they could not help but see in the attitude of the husband toward the wife and in everything that happened there, that, so far as this accused is concerned, she acted throughout in a perfectly natural way under very hard circumstances. Everything indicated that Holt knew his condition was brought on by his own act and that his wife in no way contributed to the happening. If his wife had given him the capsule he would have accused her then. Everything there indicated their relationship was amicable.
Mrs. Holt testified that after she had failed to get the doctor she returned and told her husband, and that he then replied: “There is nothing the doctor can do for me, I done a terrible thing, may God be with me”.
Doctor Walker arrived some ten minutes after Holt was dead. He examined him and later signed the death certificate in which he said that the primary cause of death was coronary occlusion, other conditions chronic inflammation of the gall bladder. Before he signed this certificate, he notified the coroner. This official came to the house and made an investigation, after which he informed the doctor that everything was satisfactory and that he should sign the certificate. Doctor Walker claims
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that he told the coroner that there should be an autopsy. This, however, the coroner flatly denied. Following Holt’s death, defendant went to the Michael apartment and remained there practically all the afternoon and evening of that day, and she spent that night at the home of friends who resided nearby. She did not return to her own apartment until the next day, and then only shortly before she left for Oklahoma, when she went there accompanied by a neighbor to get her clothes for the trip. She made no attempt to conceal or destroy anything. Her neighbors had full possession of her apartment following the death, and while she was away.
The body was sent the next night to Oklahoma. An autopsy was held there at the request of the Pennsylvania authorities, and it was found that there was an appreciable amount of arsenic in the body. When this was reported to Doctor Walker, he changed his opinion as to the cause of death as given on his certificate and said that he believed that Holt had died of arsenical poisoning, and he then attempted to give the impression that he had been of that opinion from the first. His testimony shows clearly that he was covering up what he thought was a gross mistake and for reasons of his own. His testimony, to say the least, is not reliable.
No motive for the crime was shown and the effort to prove a motive was so futile that one wonders why the district attorney in such a serious ease would introduce such testimony. For instance, it was shown that shortly prior to the death a $518.00 industrial policy was taken out. This was not enough to pay the funeral and other-expenses. And it was the only insurance Holt had on his life at the time of death. Also, by clearly incompetent testimony, to be referred to later, an effort was made to show an application for a $1,000.00 policy in the Great American Life Insurance Company. In addition, an effort was made to show that she would be the beneficiary of an amount collected by the fellow employees of her husband, and that she knew that. Surely the attempt to show motive because of insurance was a complete failure.
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Another effort to show motive resulted in testimony that several weeks before his death Holt had an argument with his wife and struck her, and that later she made the statement that she didn’t care what would happen to him, that he had killed her love. On another occasion it was shown that he had locked her out of their apartment. In other words, the wife was the innocent victim of the husband’s brutality and now that is turned upon her as a motive to convict her of the most serious crime known to the law. It was shown that on one occasion she and a Mrs. Hill drove to Pittsburgh looking for their husbands, who were in the habit of going around with other women, and that coming and going they stopped for refreshments, and each had several glasses of whiskey. There is no indication that she ever used liquor to excess, but it is clear that her husband frequently became intoxicated. I think it was the same night that she returned from this trip with Mrs. Hill that Holt struck her. The majority recites this trip in detail, but I cannot see in it any motive for murder.
There were certain trial errors in the case which make, I think, the granting of a new trial necessary. Some of them were as follows: (1) The introduction of the incompetent testimony concerning embalming fluid. The court allowed a chemist to testify that standard brands of embalming fluid contain no arsenic, and that he had examined twenty such brands. This witness admitted that he had not examined the kind of embalming fluid [Q-. H. Shell Company] used in the Holt case. His testimony gave the jury to believe that the Holt embalming fluid had no arsenic in it, which may or may not have been true. Had this not been permitted, the presumption would have arisen that the arsenic in the body of the deceased may have come there through the embalming fluid. This alone could have raised a reasonable doubt and might have resulted in the acquittal of the accused. We said in
Commonwealth v. Danz,
211 Pa. 507, 519 , 60 A. 1070 , that such question is a most material matter, re-
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suiting in substantial error, for which there should be a reversal. In that case we said that the witness testifying concerning the embalming fluid was one of the most important witnesses in the case.
The majority agrees that it was error not to have stricken this testimony out, yet hold that “defendant Avas not prejudiced” thereby. With this I do not agree, because I think this testimony highly prejudicial. We said, in
Commonwealth v. Petrillo,
338 Pa. 65, 97 , 12 A. 2d, 317 : “In ordering a new trial in this case we are not holding that there was not sufficient competent evidence offered to warrant a conviction, but we are holding that there was such an admixture of competent and incompetent eAÚdence in the testimony admitted as to deprive the defendant of the fair and impartial trial which every accused in an American court of justice is entitled to. It is the duty of the appellate courts to see to it that every defendant gets such a trial. This Court said in
Logue v. The Commonwealth,
38 Pa. 265, 269 , in an opinion by Justice Thompson: ‘It was suggested on the argument here, that even if there was error in the particulars discussed, it did the prisoner no harm, as the jury found him to be guilty of a wilful, deliberate, and premeditated murder, and therefor the law of self-defense could have no application to his case. This suggestion is more plausible than sound. It would be very unsafe to prove the accuracy of all the steps in a trial by the result of the verdict.
Who can tell what the result might be in any given ease where there is error in some of its parts?
The result might be accurate, but it would probably be accidental.
The law does not conclude parties and rights upon such uncertain grounds.
Its utmost effort is accuracy, as far as it may be attained through fallible agencies, and then its mission is complete, and its conclusions irrevocable.” (Italics added.)
(2) The learned trial court failed to properly charge on the subject of circumstantial evidence. He did not make clear “to the jury the nature of circumstantial
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evidence, and in language understandable to lay minds the jury should have been instructed that if the evidence could reasonably be explained on any other theory than that of the guilt of the accused, she should be acquitted”:
Commonwealth v.
Giovanetti, 341 Pa. 345, 359 , 19 A. 2d 119 . This Court said in
Commonwealth v.
Bardolph, 326 Pa. 513, 521 , 192 A. 916 , quoting with approval the following from
Commonwealth v. Benz,
318 Pa. 465, 472 , 178 A. 390 : “When a charge of crime is sought to be sustained by circumstantial evidence, the hypothesis of guilt should flow from the facts and circumstances proved, and be consistent with them all. The evidence must be such as to exclude to a moral certainty every hypothesis but that of guilt of the offense imputed; the facts and circumstances must not only be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence.” The trial court should have charged in almost this identical language so that the lay minds of the jury could understand that if the evidence against the accused could be reasonably explained on any other theory than that of guilt the accused must be acquitted. The trial court touched upon this subject in its qualified affirmance of defendant’s seventh point, but in a way that was confusing and of little or no help to the jury. I think defendant was prejudiced by the inadequate manner in which this important subject was handled.
(3) The court erred in allowing the introduction of Holt’s application for insurance made to the Great American Life Insurance Company. The application was secured from its office in Texas by a Pennsylvania State Policeman. He brought it to court and the trial judge permitted it to be introduced in evidence. No agent or representative of the company appeared to testify to anything concerning it. The action of the court in this respect was nothing better than the admission of pure hearsay testimony. If the jury could imagine anything in the way of motive from the testimony concerning in
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surance, the admission of this incompetent application was decidedly prejudicial to the accused. The majority, conceding that it was error to have admitted this evidence, hold, however, that such testimony “had very little to do with the vei’dict”. Who can say what effect the testimony regarding insurance had on the verdict of the jury? The attitude of this Court seems to me to be pure assumption, nothing better than a guess, and one in which the Court should not indulge.
(4) The majority says that the accused was not prejudiced by the refusal of the trial court to charge that conviction could only follow their being convinced beyond a moral certainty of the guilt of accused. This would seem to approve the dropping of this phrase out of the law as being the equivalent of “beyond a reasonable doubt”. I think it a bit too late in the day, under our decisions, to say that one is the equivalent of the other— that each mean the same thing. In one of our recent cases,
Commonwealth v. Libonati,
346 Pa. 504, 508 , 31 A. 2nd 95, Mr. Justice Patterson said: “The requirement of the law is that in order to warrant a conviction the facts and circumstances proved must be of such character as to produce a moral certainty of the guilt of the accused beyond any reasonable doubt”. See
Commonwealth v. Giovanetti,
supra. This is a correct statement of the law as it exists today, and therefore, the lower court erred in failing to follow it.
I think that it is very doubtful that the corpus delicti was proven; also that even if the case had to be submitted, and I think this.was necessary, the testimony against the accused was so weak that in a fair trial she would be found not guilty because of the reasonable doubt. She was perhaps unfortunate beyond her deserts by reason of the “hue and cry” in this small community against a woman who was charged with a cowardly and atrocious crime.